Comments on: The Durbin amendment

By: Adele MacLean

Adele MacLean — Wed, 16 Jun 2004 18:07:47 +0000

I just learned about the Durbin amendment today. Has it come up for a vote yet? Today is Wed., 6/16/04. I want to call my senators if there’s still time, but I don’t want to call about something that’s old news. Thanks. AM

By: pepi

pepi — Sun, 13 Jun 2004 16:27:46 +0000

Robert: maybe we mean something different by “interpretation”. The UN, the WTO are organisations, any charters or treaties they imply with membership are far more general than extremely specific conventions on torture and the treatment of prisoners. For instance, deciding how to interpret the UN charter on resolution of disputes is very much a case-by-case business producing a lot of disputes in itself. But, by sheer logic, there is no way such a specific and unequivocal convention as that on torture and prisoners of war can be “interpreted” in a way that explicitely renders its entire meaning, the very definition of its field of application, and its very application completely useless – such as in this case. The memo redefines the notion of torture, finds a million ways a “defendant” can excuse his actions of torture, overtly says the Geneva conventions are unconstitutional!, and that the President has the right to override any other law anyway, in his duty as commander in chief. This is far from a simple “interpretation” – this amounts to complete denial of the duty to adhere to the Geneva conventions, without actually going through the inconvenience of repealing the US’s signature to them. If the Geneva conventions are unconstitutional as the memo says, then the US must repeal its membership immediately. But they’re not doing it – for the obvious reasons already said. Because they still want their protection when it comes to American citizens. I very much doubt the concept of interpreting international law extends this far. No treaty can allow for a member to completely_ deny their very duty to respect that treaty, while remaining a member and therefore demanding it is respected in their regard. That is not an interpreation. It’s a total farce.

By: jack

jack — Sun, 13 Jun 2004 15:37:53 +0000

Thanks in no small part to Rob Lyman this thread has defied Godwin’s law for an incredibly long time.

By: bull

bull — Sat, 12 Jun 2004 20:14:02 +0000

“Now, obviously it’s a different think to fight a desperate battle to free a murderer than to advise people ‘you can kill someone if you’re black, based on my outlandish theory.’” It’s also different to fight a desperate battle to free a torturer than to advise people “you can torture prisoners, based on my outlandish theory.” And hearkening way back in this thread, an attorney who believes that abortion is “murder” and therefore hugely immoral, if asked to prepare a memo describing the circumstances under which abortion is legally protected, and discussing ways in which the President might use his office to further expand abortion rights, should find a new job.

By: Robert Lyman

Robert Lyman — Sat, 12 Jun 2004 18:43:30 +0000

Pepi, I’m sorry I don’t have a citation, but yes, internatinal law holds that the final arbiter of the meaning of a treaty is usually the country which is “bound” by it. Sometimes treaties set up dispute resolution mechanisms (think the WTO), and the UN has some “courts,” but those courts don’t have meaninful enforcement power and most treaties don’t give them the right to have the final say. So countries have the authority to adopt deeply stupid interpretations, and the only recourse for their treaty partners is to retaliate with similarly stupid interpretations. (or invade) International relations is a game where much is “impossible” only because people agree it is impossible, not because you can’t actually do it. The first question that came to mind when I read about this was, why have legal advisors discuss this issue, and not the parliamentary institutions? Well, the political answer is obvious, but I’d agree with you on the process—that kind of sea change in policy ought to be made in the open with the consent of the legislature. (Of course, I say that knowning full well Congress would never approve this memo as law.) By the way, I had a chance to look a little more closely at the the ABA rules, and I found one which goes somewhat against the position I’ve taken here: Model Rule of Professional Conduct 2.1:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

Now, this says “may,” not “must.” But it does provide a good basis for demanding more from the laywer than just law. I’m still concerned about a chilling effect (and in particular, the relationship between Ted’s post and the petition against John Yoo (scroll up for updates)), so I haven’t changed my mind. (I should have mentioned Yoo earlier, since really I’m more worried about him than this torture memo). But consider this an admission against interest.

By: robbo

robbo — Sat, 12 Jun 2004 18:32:07 +0000

Robert wrote: Robbo, you are confusing ethics and morality. Legal ethics require lawyers to do things that are arguably or even patently immoral—such as helping child molesters to go free, or discussing when torture might be permissable. Actually, I wrote: Ultimately, Mr. Lyman may have fair point about the practical necessity for lawyers as a group to be amoral and essentially unethical. Since I straightforwardly acknowledged your point it’s hard to see how I’m “confusing” anything. I do agree with those here who believe that government lawyers are actually beholden to the citizens of the United States, not the President or any other representative of the government itself. As such, I expect those lawyers to interpret the law with my best interest at heart, and yours. If you can argue that this team of lawyers did that then you’re among the most self-deluding people I’ve ever run across. I sense that the legal amorality you expound upon here is heady and liberating to many who practice law at the highest levels, but I also perceive that we can’t maintain an advanced society without some leavening of morality.

By: pepi

pepi — Sat, 12 Jun 2004 09:34:14 +0000

Robert: are you sure about that “free” interpretation thing? that it’s the way it’s supposed to be for all international law? It’s the first time I hear that any Treaties or Conventions especially those about war prisoners can be liberally adapted by the contracting parties. I mean, it’s being done, so of course it “can” be done – but doesn’t seem to me it’s allowed by those Conventions at all, or by international law at large. It’s only the US claiming this right. Yes, I agree, it is a terrible idea. But I disagree that it has any legal basis whatsoever. You either sign on to them or you don’t. No in-between. The conventions start off with “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” – and in the commentary linked by Ted’s post, there’s many quotes and instances specifying torture is never admissible no matter what circumstances, war, threats, etc. Plus, the whole point is also that this loose reading of the Geneva conventions seems to be against the US constitution so… it seems utterly indefensible. It voids the US adherence to the treaties without doing so explicitely via denounciation. I must add I’m also puzzled by the discussion here on the nature of legal advice to clients. As if it was a case of private legal advice to an individual or a business? It’s not, it is about the policy of a government. The first question that came to mind when I read about this was, why have legal advisors discuss this issue, and not the parliamentary institutions? I have some trouble understanding that process.

By: Robert Lyman

Robert Lyman — Fri, 11 Jun 2004 23:47:19 +0000

You’re right about that last point, Ted.

By: Ted Barlow

Ted Barlow — Fri, 11 Jun 2004 23:28:33 +0000

Last point- I should say that we’ve occasionally made the mistake of treating defenses and advice as morally equivalent. The lawyer pleading “Post Traumatic Slave Syndrome” is presumably doing the best he can with a bad hand. It’s embarassing, but not unethical. If that lawyer advised a client to commit a murder, based on “Post Traumatic Slave Syndrome” (or any other theory), that’s wildly unethical. Similarly, I could imagine a lawyer charged with defending torture on the arguments laid forth in this memo. I wouldn’t want to see that lawyer disbarred. But offering this memo as a guideline for future action is different.

By: Ted Barlow

Ted Barlow — Fri, 11 Jun 2004 23:22:39 +0000

Fair enough. One of these days, one of us is going to convince the other of something. On that day, bells will peal, the dead will walk, and dogs and cats will be found living together.

By: Robert Lyman

Robert Lyman — Fri, 11 Jun 2004 23:13:54 +0000

If the US reserves the right to “interpret” the conventions as it sees fit, then surely it follows that other nations have the same right to interpret their own way too in respect to their relations with the US... Pepi, you have correctly stated the law. As a matter of customary internatinal law, treaties are indeed interpreted by the parties to them, so the US can interpret any treaty as it wishes, including in a ridiculous way. (And here I must apologize--I do not have a copy of the Restatement 3d. of Foreign Relations Law handy and thus I cannnot provide authority for this proposition--can somone help me out or contradict me with a cite?) And yes, other nations may then observe our behavior and interpretation and decide for themselves whether we are in compliance, and take what steps they consider appropriate. That makes patently false interpretations a bad idea. Ted, since #3 in your example involves giving advice which has already been laughed out of court, it would be malpractice. I would prefer an option that read: #3 giving advice which involve long, risky stretches of existing law, which, although not directly contradicted by existing case law, are quite likely to lose in court because similar but not identical arguments have lost. Stipulate further that the client had asked for long, risky stretches because he really, really wanted to do something and needed some argument--any argument--to use when the time came. Then I'd pick #3 and you'd pick #4. I'd like to know if the DoD lawyers objected to their assignment and said that torture was a bad idea, only to be told "We know, but we want the memo anyway." I have in mind the defense lawyer who is trying to get his (black) client off for murdering his child by claiming "Post Traumatic Slave Syndrome." He'll be laughed out of court, and rightly so. But his client refuses to plead out, and presumably the DA has a mountain of credible evidence, so he has to do something. Now, obviously it's a different think to fight a desperate battle to free a murderer than to advise people "you can kill someone if you're black, based on my outlandish theory." In any case, I think our difference is clear enough and firm enough that we must (as usual) agree to disagree.

By: Ted Barlow

Ted Barlow — Fri, 11 Jun 2004 22:28:46 +0000

Wow, I left a lot of unfinished sentences there, didn’t I? Oh well, you get the idea.

By: Ted Barlow

Ted Barlow — Fri, 11 Jun 2004 22:14:15 +0000

Rob, I should know better than to debate points of law with a law student. I have no doubt that you’re right about the obligations of a criminal defense attorney, and I’m sorry for misstating them. But by citing the proper rules, you acknowledge my larger point- an attorney ultimately has to be responsible to the law before his client. He is obligated to look out for his client’s interests, but he has to do so in a lawful way. When giving legal advice Let’s say that a corporation asks its legal department about how to minimize taxes. They have any number of options: 1. They could give them conservative advice, telling them how to minimize their taxes in ways that wouldn’t put them in any danger in an audit. 2. They could give them advice that stretches the law. For example, they could advise them to laying out tax shelters, move income offshore, and redefine of assets and income streams in ways that an aggressive auditor might find suspicious. 3. They could give them indefensible advice. For example, they might advise their company that taxes are involuntary servitude, and that they shouldn’t pay any under the Thirteenth Amendment. This is an argument that an anarcho-libertarian might make; I’m sure I could find an intelligent person on Samizdata arguing it within a few minutes. However, it wouldn’t hold up in court, and we all know it. (I believe that it is tried on a semi-regular basis and laughed out of court. Not a lawyer; can’t find cases.) 4. They could offer advice that is not only plainly wrong, but lawless. They might recommend that the corporation refuse to pay taxes, falsify their records, and threaten any auditors with violence. If this framework is useful, you’re arguing as if these lawyers’ behavior was more like #3. I’m arguing that it was more like #4. I’d agree that there would be a chilling effect if lawyers felt that they risked disbarment for bad advice. I would not agree that there would be a chilling effect if lawyers felt that they risked disbarment for advising their clients to “But where’s the line?” Good question. I’d have to say that that’s up to arbitrators on the bar. But without some attempt at judgement, a lawyer can advise his client to do anything- torture prisoners, claim unlimited power, falsify evidence, murder a witness-and suffer nothing but professional embarassment. As long as he can point to some sort of justification, however lame it is, he’s in the clear.

By: nolo

nolo — Fri, 11 Jun 2004 21:28:20 +0000

But I agree this is a lousy memo in numerous ways. Robert, as they say, from your lips to God’s ears.

By: pepi

pepi — Fri, 11 Jun 2004 21:21:25 +0000

Really, one has to wonder why bother to sign up to Conventions at all if they can be overridden “because they’re not federal laws”. Of course the only coherent, if ugly, route is to simply repeal the ratification of all international Conventions altogether, not claim that they can be “interpreted” and must come second to whatever national policy or decision. But if the US did that, if it retracted its signature, then the US military would not be protected by those Conventions abroad. Ha. I wonder this memo implies in that respect. If the US reserves the right to “interpret” the conventions as it sees fit, then surely it follows that other nations have the same right to interpret their own way too in respect to their relations with the US - interpret their way not just the conventions, but whether the US is still effectively a contracting party, and its military still to be guaranteed by those laws. Very interesting.